On April 12, 2022, Waukesha County Circuit Court Judge Bohren issued an oral decision concerning a legal challenge from an Oconomowoc-based dry-cleaner Leather Rich, Inc. (Leather Rich) and Wisconsin Manufacturers and Commerce (WMC) against the Wisconsin Department of Natural Resources (DNR) regarding the DNR's ability to regulate per- and polyfluoroalkyl substances (PFAS) as "hazardous substances" under Wisconsin Statutes ch. 292. Although the bases for Leather Rich's and WMC's claims are to prevent DNR from regulating PFAS, Judge Bohren's decision also extends to how DNR may regulate other constituents because it grants WMC's requested relief to require DNR promulgate a comprehensive list of hazardous substances and quantities or concentrations of substances which make them hazardous.
Judge Bohren found in favor of Leather Rich and WMC on all counts. According to this ruling, which will not go into effect until after a Jun. 6, 2022 decision hearing regarding whether the effect will be stayed pending appeal, the DNR may not apply the broad definition of "hazardous substance" to PFAS without first satisfying certain rulemaking standards. This is the same narrative definition – as opposed to any list, bright line technical or numerical test – that the DNR has used for regulating hazardous substances for the last four decades. This would mean DNR would not have authority over "responsible parties" under ch. 292 who are conducting cleanups of PFAS – and potentially other chemicals – that are or have been discharged to the environment, unless the DNR first completes rulemaking to create a list of hazardous substances.
Judge Bohren also found that DNR must complete rulemaking to define "specific numerical levels" that "trigger a cleanup" for PFAS and all other hazardous substances. Through this finding, Bohren granted WMC's request for DNR to promulgate as a rule a list of hazardous substances, or quantities or concentrations of substances which make them hazardous.
POTENTIAL IMPACTS TO THE DNR REMEDIATION AND REDEVELOPMENT PROGRAM
If Judge Bohren's decision were to stand, Leather Rich, like any other entity with an open remediation matter where PFAS is present in the environment, may not be able to meet the general requirements of regulatory case closure under Wis. Admin. Code ch. 726 without the DNR first completing rulemaking identifying PFAS and possibly other chemicals present in soil and groundwater as hazardous substances. Environmental professionals may be tasked with assisting businesses with PFAS in the environment, but with a regulatory agency enjoined from addressing known conditions of the environment caused by PFAS.
According to the Waukesha County ruling, DNR would need to undertake rulemaking to "list" PFAS as a hazardous substance and DNR would also need to specify "cleanup values" for PFAS in each environmental media – soil, sediment, groundwater, surface water, and for vapor. Some environmental professionals believe the ruling could be extended to limit DNR's authority of other chemicals and constituents that DNR has regulated as ch. 292 hazardous substances for decades, including familiar contaminants such as the components of petroleum products.
POTENTIAL EFFECT ON THE DNR VOLUNTARY PARTY LIABILITY EXEMPTION PROGRAM
The lawsuit also took issue with the DNR's application of the Voluntary Party Liability Exemption (VPLE) program and coverage of which hazardous substances may be included in a certificate of completion, arguing again that DNR must complete rulemaking under Wis. Stat. ch. 227 before changing policy. On the topic of the VPLE program, Judge Bohren also found in favor of Leather Rich and WMC declaring DNR may not issue certificates of completion that provide an exemption from environmental liability for the specific hazardous substances addressed in a cleanup. Therefore, if it stands after appeal, this ruling would mean that DNR may not issue VPLE certificates of completion until after DNR completes rulemaking to validate its practices for interpreting and applying the VPLE program under Wis. Stat. § 292.15. This decision directly impacts all voluntary parties enrolled in the VPLE cleanup program who wish to receive a certificate of completion.
ADMINISTRATIVE RULEMAKING IN WISCONSIN AS A SOLUTION TO REGULATORY UNCERTAINTY
This ruling potentially expands the effect of the Wis. Stat. ch. 227 limitations on administrative agency authority and has the potential to impact all open remedial action sites in Wisconsin. In his ruling, Judge Bohren stated the DNR has violated "due process and fair notice" without first promulgating a list of hazardous substances that includes PFAS. Judge Bohren did not specify by when DNR must complete this rulemaking directive.
Rulemaking in Wisconsin is not an expeditious process. The average current administrative rulemaking in Wisconsin takes 30 months to complete. In the alternative, DNR may temporarily adopt a rule as an emergency rule if the agency determines that the preservation of public peace, health, safety, or welfare necessitates placing a rule into effect prior to the time it could take effect as a permanent rule. In 2017, the Wisconsin legislature passed the REINS Act which, among other things, requires administrative agencies, including DNR, to follow proscribed rulemaking procedures for any administrative rule that exceeds $10 million to implement within a two-year period, absent separate legislation.
The ruling represents a conundrum for DNR for how to implement the requested relief. If the decision should stand, current remedial action laws that contemplate how to propose cleanup levels may be invalid and unauthorized pending the promulgation of a list and subject to extensive amendment and overhaul.
The decision stands in contrast to recent state and federal developments concerning PFAS.
- At the state level, subject to the approval of the State of Wisconsin Legislature's Joint Committee for Review of Administrative Rules, Wisconsin will soon have enforceable values for drinking water and in surface water quality criteria in wastewater permits for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), the two most studied PFAS.
- At the federal level, there are currently 360 identified constituents which the United States Environmental Protection Agency (EPA) has promulgated as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (known as CERCLA or Superfund) cleanup program, which is comparable and a federal parallel to the Wisconsin Spills Law. The EPA is expected to issue a proposed rule to add PFOA and PFOS to this list of identified CERCLA hazardous substances any day this spring with final action in early 2023. EPA is also requiring certain public water systems to test for a suite of 29 PFAS as part of the fifth Unregulated Contaminant Monitoring Rule (UCMR 5) between 2023 and 2025.
Were Judge Bohren's ruling to stand, therefore, by 2023, the state of PFAS regulation in Wisconsin could be exceptionally uneven, with effective state regulation of PFAS in wastewater and drinking water, as well as federal liability exposure for PFAS in soil, groundwater and other environmental media under CERCLA, but no DNR authority to regulate PFAS, pending likely contentious emergency and/or permanent rulemaking.
Judge Bohren agreed to place a hold on his ruling for 30 days, after the Wisconsin Department of Justice stated it intends to appeal the decision and file a motion to stay the decision pending appeal. If the anticipated motion to stay is granted and appeal is granted, the effect of the Waukesha County Court's ruling on DNR's authority would not go into effect pending the appeal.
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